pam holmes steve edwards, j.d. drug court operations analyst … spring pd conference/defense... ·...

Pam Holmes

Director of Problem-Solving Courts

Administrative Office of Courts

601-576-4631

April 25, 2019

Steve Edwards, J.D.

Drug Court Operations Analyst


601-576-4626

Administrative Office of Courts PROBLEM-SOLVING COURTS

U.S. Substance Abuse

MS Problem-Solving and Drug Court Structure

MS Drug Court Overview

FY19 Goals

Defense Attorney Role in Drug Court

Overview


70,200 67% $182B 50% estimated

Americans died of

a drug overdoses

in 2017

of all fatal drug

overdoses in the

U.S. are due to

Opioids

of all U.S. inmates

have a substance

use disorder

amount the U.S.

spends annually

on incarceration

U.S Substance Abuse - 2017


1989 1st Adult Felony Drug Court in the U.S. - -

Miami / Dade County, FL

2019 3,100 Drug Courts in the U.S. - - 50% being

Adult Drug Courts

Nationwide Drug Courts


STATE OF MISSISSIPPI JUDICIARY

ADMINISTRATIVE OFFICE OF COURTS

PROBLEM-SOLVING COURTS

State of Mississippi Structure


PROBLEM-SOLVING COURTS

Pam Holmes

Director Problem-Solving Courts

40 DRUG COURTS MENTAL HEALTH COURTS 3 PILOT VETERANS COURTS

Steve Edwards Drug Court

Operations Analyst

Drug Court Financial Analyst


Goals

• Recertification Process all Drug Courts

• Drug Court Financial and Operational

Compliance

• HB 1352 Compliance

• Data Integrity / Implementation of New

Drug Court Case Management System

FY19

Mississippi Drug Courts


1999 1st Adult Felony Drug Treatment Court – 14th Circuit

2009 11 Adult Felony Drug Treatment Courts

2019 20th Anniversary First Adult Felony Drug Court



22 Adult Felony Circuit Drug Courts

34 Circuit Court Judges

3,416 Active Participants

Adult Felony Drug Courts

FY19


2 Municipal and 1 Justice Drug Courts

3 Judges

114 Active Participants

Misdemeanor Drug Courts

FY19


12 Youth Drug Courts

12 Youth Court Judges


Youth Drug Courts

FY19


3 Family Drug Courts

3 Family Court Judges


Family Drug Courts

FY19


40 Drug Courts 52 Judges

3,859 Active Participants

1,366 New Participants

535 Successfully Completed

18,259 Community Service Hours


FY19


$53.72 MDOC’s cost per inmate a day ($19,607)*

$75.6 million to Incarcerate 3,859 drug court

participants

$6.5 million State Appropriation for 3,859 drug

court participants

*MDOC FY2018 Cost Per Inmate Day April, 9, 2019 PEER Committee


FY19


$69.1 Million Annual

Savings to the State

with Drug Courts

versus Incarceration


FY19

Administrative Office of Courts DRUG COURTS

Defense Attorney Role in

Drug Court

Steve Edwards, J.D.


601-576-4626

April 25, 2019


Authority for MS Drug Courts • Alyce Griffin Clarke Drug Court Act, MS Code §9-23-1 through §9-23-51 (Rev. 2014).

• Mississippi Drug Court Rules (“MDCR”), revised July 2017.

• https://courts.ms.gov/trialcourts/drugcourt/drugcourt_rules.pdf

• Mississippi Drug Court Fiscal Policy, revised July 2017.

• https://courts.ms.gov/trialcourts/drugcourt/Drug%20Court%20Fiscal%20Policy.pdf

• National Association of Drug Court Professionals (“NADCP”) Best Practice Standards.

• https://www.nadcp.org/standards/

• Represents 25 years of empirical studies on addiction, behavioral health,

pharmacology, and criminal justice.

• MDCR §5(b)(4)-Requires MS Drug Courts comply with Best Practice Standards.

• Local MS drug court policy and procedures that do not conflict with any

statutes/rules/standards above.

https://courts.ms.gov/trialcourts/drugcourt/drugcourt_rules.pdf

https://courts.ms.gov/trialcourts/drugcourt/drugcourt_rules.pdf

https://courts.ms.gov/trialcourts/drugcourt/Drug Court Fiscal Policy.pdf

https://courts.ms.gov/trialcourts/drugcourt/Drug Court Fiscal Policy.pdf

https://www.nadcp.org/standards/

https://www.nadcp.org/standards/


What is a Drug Court?

• A specialized court handling cases involving participants who suffer from a substance

use disorder.

• Addresses a participant’s needs through comprehensive supervision, drug testing,

treatment, and the delivery of immediate sanctions and incentives.

• The primary goal of a drug court is to introduce and instill in participants a lifestyle of

self-directed recovery.

• NOT a temporary supervised period of forced sobriety.

• Realization of this goal requires a team-based, cooperative approach from all players

in the criminal justice system.


Who is Part of a Drug Court Team? • MDCR §13(a) requires that a drug court team consist of:

• Local drug court judge

• Local prosecuting attorney or a representative from office

• Local criminal defense attorney

• One or more local treatment providers and

• Local drug court coordinator


Drug Court Team Staffings • When? MDCR §13(b) requires a drug court team to establish a policy and practice

regarding regular meetings or “staffings.”

• No less than biweekly.

• Prior to drug court status hearings.

• Who attends? All team members.

• Cost Savings

• All Team Members-20%

• Prosecutor-171%

• Defense Attorney-93%

• Recidivism reduction

• All Team Members Attend-50%

• Prosecutor-35%

• Defense Atty-21%

• Treatment Rep-105%


Staffing: What to Discuss • Purpose of staffing is to present a coordinated response to participant behavior.

• Determine if defendant is suitable for drug court.

• Sharing of Information

• Bad AND good behavior

• Testing results

• Attainment of treatment goals

• Compliance with drug court rules

• New arrests/offenses

• Incentives/Sanctions

• Develop coordinated plan for participant that is failing.

• Your opportunity to advocate for the drug court participant.

• Staffings are always closed meetings for confidentiality purposes.


Defense Attorney Role on Team • Advocate for each participant’s stated interests.

• Define role clearly to participant and drug court team.

• Advise potential participant prior to entry.

• Attend and advocate at all drug court staffings and accompanying hearings.

• Protect each participant’s due process rights.

• Ensure local drug court policy and procedures comply with all federal and MS state

law, drug court rules, and NADCP best practice standards.

• Entry/Screening Process

• Participation Agreements, Confidentiality Waivers, Handbooks

• Supervision Length

• Mandatory Expungements

• Incentives

• Sanction Process

• Drug Testing

• Use of Restitution Centers


Defining Your Role • Communicate and define your role in writing in the drug court policies and

procedures provided to the drug court team and staff.

• Communicate and define your role in writing in the drug court handbook provided to

participant.

• The Mississippi Rules of Professional Conduct still apply in representing your participant

client.

• Duty of Confidentiality-MPRC 1.6

• Duty of Loyalty-MPRC 1.7

• Understand your participant client’s objectives in drug court.

• Recovery?

• Avoiding Criminal Conviction?

• Avoiding Prison?


Advising Participant Prior to Entry • Ensure the choice to enter drug court is voluntary.

• Potential participant should be aware drug court supervision is typically longer

than “traditional” sentencing track.

• Ensure that the potential participant understands the extent and scope of drug court

responsibilities.

• Full understanding of drug court fees, MDCR §19(a)(9).

• Attorney signature required on participation agreement, MDCR §19(b).

• Potential curfew requirements.

• Potential association restrictions.

• Lack of privacy during direct observation urine collection.

• Ensure participant is properly advised regarding confidentiality releases.

• 42 CFR Part 2-applies to drug court team and staff.

• HIPAA applies to all treatment agencies partnering with drug court.


Staffing Role • Advocate for individual defendant’s entry to the program.

• Even if defendant is not your client.

• Ensure defendant is legally eligible under MS Code §9-23-15.

• Advocate for plea bargains to district attorney rep to drop ineligible charges.

• Advocate for the stated interests of your participant client.

• Your best ally could be the treatment representative.

• Advocate for necessary medications.

• Drug Court is not judge directed treatment.

• Your advocacy could be directly adverse to his or her “best interests” in the

recovery process.

• Never advocate for sanctions against your participant client, unless he or she agrees.

• Never reveal confidential information of any type without permission.

• This includes a confession of relapse.


Reforming the Entry Process • MS Drug Courts are not currently designed as reentry courts.

• MS Code §9-23-3(f)-Goal of drug court is to use corrections resources more

effectively by redirecting prison-bound offenders to treatment in drug court.

• If your Court is using Post-release supervision programs under MS Code §47-7-

34 with an “up-front” prison sentence, it is not following the statutory goal.

• Adding to costs, not reducing.

• Circuit Court judges have no jurisdiction over parolees, see MS Code §47-7-17.

• Not eligible to be admitted to drug court.

• Cannot be sanctioned and sent to county jail.

• Cannot be drug tested or provided any type of services through the drug

court.

• Solution: Target these “fringe” drug court/prison defendants for your advocacy.


• Who is the “gatekeeper” to entry into your drug court?

• Per NADCP Best Practice Standards, the drug court judge shall be the sole

gatekeeper into your drug court program.

• Admit over DA objection.

• After a proper screening process, the drug court team shall discuss a potential

participant’s entry in drug court with a final decision made by the drug court

judge.

• Improper “veto” power observed in MS Drug courts

• Arresting officer

• “Opinion” from local sheriff’s office as to “character” of defendant.

• Drug Court coordinator

• District Attorney

Reforming the Entry Process


• Must target medium to high risk offenders for participation, MS Code §9-23-11(2)(ii)

• Must conduct an eligibility screening, MDCR §16. Two part:

1. Legal eligibility for drug court under MS Code §9-23-15.

• Charge pled to cannot be a crime of violence(“COV”).

• COV includes any burglary of dwelling under MS Code §97-17-23.

• No pending COV charges in other pending cases.

• No COV conviction within the previous ten years.

• Charge pled to cannot be a DUI or DUID that resulted in death.

• Charge pled to cannot be trafficking under §41-29-139(f) or priors of same.



2. Determine eligibility by providing for clinical assessment of treatment needs.

• NADCP Best Practice Standards require you to focus on “High risk/high need”

participants.

• “High Risk”-likelihood the participant will not succeed on standard probation.

Examples of risk factors:

• Familial history of crime or substance use disorder

• History of violence

• Substance use onset

• “High Need”-Participants clinically assessed at being moderate to severe

based upon DSM-V for illicit substances or alcohol (substance use disorder).

• If a defendant fails on “standard” probation, should be an ideal candidate for

drug court.



• Improper Screening Methods observed in MS Drug Courts

• Screening never occurs

• Judge sentences to DC as a condition of probation, evaluates participant

from criminal history and crime before the court. “Wants them in drug court.”

• Judge sentences participant to DC over DA, PD, and participant objection.

No legal eligibility!

• Screening occurs late

• Judge sentences as condition of probation without a clinical assessment.

Participant is screened and DOES NOT have a drug or alcohol problem!

• Deficient Screening Tool

• Substance Abuse Screening Inventory (“SASSI”) alone.



• How to ensure a participant is suitable for drug court?

• Conduct all necessary evaluations prior to staffing.

• Substance Abuse Subtle Screening Inventory(Substance Use Disorder) AND

• Risk and Needs Triage (High Risk/High Needs) AND

• Comprehensive clinical evaluation

• At staffing, ensure your client or the potential participant has the appropriate

treatment resources available for his or her medical needs.

• Work with treatment provider to pursue additional resources.



Participation Agreements

• Drug Court is voluntary. No judge shall order a participant into drug court until a

participation agreement is completed.

• MDCR §19(a) lists the 10 requirements the participant agreement must contain.

• List of drug court requirements and participant responsibilities.

• Handbook receipt, date and signature.

• A surprise for participant after entry=due process violation.

• Information related to drug court fees and procedures for payment.

• MDCR §19(b) requires that the participant be given the opportunity to review the

participation agreement with the advice of counsel.

• Unless participant is self-represented, defense counsel shall sign.


Supervision Length

• Maximum Felony Supervision Length is Five Years

• Probation-MS Code §47-7-37

• Non-Adjudication-MS Code §99-15-26

• Post-Release Supervision-MS Code §47-7-34

• Can a “sua sponte” order signed by the judge extend the drug court supervision

period beyond 5 years?

• No.

• Can a participant agree to continue on probation, non-adjudication, or post-release

supervision after five years?

• No, MS Att’y Gen. Op. No. 2009 WL 29722534 (2009)

• A participant may voluntarily continue in the program after the probation, non-

adjudication, or post-release supervision has ended.


Supervision Length

• It is judicial misconduct to keep drug court participants in the program longer than

statutorily permitted. Miss. Com’n on Judicial Performance v. Thompson, 169 So. 3d

857 (Miss. 2015)

• Judge Thompson was removed from office.


Expungements

• MS Code §9-23-23

• Expungement order must contain reference to drug court statute.

• Excludes implied consent violations (DUI, etc.).

• Expungements are free to participants. MS Att’y Gen. Op. No. 2011 WL 3627227 (2011)

• No petition shall be filed.

• Expungement is automatic if participant completes all requirements.

• Upon successful completion of drug court, a conviction or adjudication MUST be

expunged. MS Att’y Gen. Op. No. 2010 WL 2019885 (2010).

• Regardless of whether another statute, independently, authorizes expungement


Encouraging Incentives

• Better outcomes when productive behavior is incentivized, NADCP Best Practice

Standards IV, Commentary, H. Incentivizing Productivity.

• 4:1 ratio of incentives to sanctions is ideal.

• Consistent use of incentives rewires chemical pathways.

• Examples of Positive Behavior to Encourage:

• Attending treatment sessions

• Attending AA/NA

• Being Honest

• 1st Negative Screen, 5th Negative Screen, 20th Negative Screen

• Reengaging with Treatment after a relapse

• Community service

• Consistent employment


Encouraging Incentives

• Examples of Incentives

• Gift Cards

• Sporting event tickets

• Fish bowl grab

• Household items

• Standing Ovation

• Phase up Certificates

• Reduced reporting


Sanctions

• Jail sanctions should be a last resort, not a first response.

• NADCP Best Practice Standards limit the maximum jail sentence to FIVE DAYS.

• If participant freely admits rule violation,

• No hearing or attorney necessary.

• After staffing where an appropriate response is discussed, impose sanction.

• UNLESS, terminating from drug court.

• If participant denies the facts of rule violation,

• Will participant suffer a loss to their liberty as result of violation, i.e. due process

rights invoked?

• Increased reporting-Yes

• Earlier curfew-Yes

• Increased drug tests-Yes

• Jail-Yes

• Termination from Program-Yes


Sanctions

• If the participant contests the rule violation, what is next?

• If a positive drug screen,

• Drug court is required to send for confirmation testing.

• If still deny, provide counsel, notice, and drug court hearing date.

• All other violations,

• Provide counsel, notice, and drug court hearing date.

• Potential result of Depriving a participant of his or her due process rights?

• Judicial misconduct for signing drug court orders of contempt without notifying

participants of charges or right to hearing, and by conducting hearings without

adequate time for participants to have proper counsel or evidence presented.

Miss. Com’n on Judicial Performance v. Thompson, 169 So. 3d 857 (Miss. 2015).

• Judge’s defense to this charge was “drug court is different from regular court.”


Understanding Drug Testing

• MDCR §23 requires each drug court to have a written policy and procedure for

scheduling and conducting chemical tests.

• (b)(4)-frequent and random testing schedules

• Random testing. Includes weekend and holidays.

• Urine testing at least twice weekly up until last phase.

• Participants shall not be informed of drug testing frequency.

• (b)(5)-circumstances requiring a confirmation test.

• Whenever a participant denies results of drug screen.



• (b)(6)- procedures for confirmation including type of confirmation test used.

• No MS Drug Court can perform a valid confirmation test in-house.

• Confirming cup screen with an analyzer screen-No

• Confirming cup screen with another cup or stick-No

• Mailing sample to another drug court to run on analyzer-No

• Only valid confirmation test is that which tests for “chemical fingerprint.”

• Gas or Liquid Chromatography on a Mass Spectrometer.



• (b)(7)- party responsible for paying for confirmation tests.

• If positive, participant should be responsible.

• If negative, Court should cover costs.

• The Court cannot profit on confirmation tests.

• (b)(8)-collection procedures

• Step by step process

• Chain of custody


Restitution Centers

• Restitution Centers are not appropriate for drug court participants. Why?

• MS Code §99-37-19. To qualify for a restitution center:

• (c) a participant/inmate must not have drug, alcohol, emotional or physical

problems so serious that the participant/inmate appears unlikely to meet

obligations of the restitution program.

• No treatment resources

• No/improper drug testing.

• “Restitution” center, not a court costs/fines/drug court fees center.


Restitution Centers

• 8 of the 22 circuit drug courts are currently using restitution centers.

• For Fiscal Year 2018, 60 participants were sentenced to the restitution center.

• Of these 60 participants, 25 were from one court.


HB 1352 Update

• Effective July 1, 2019.

• All Drug Courts are to be referred to as “Intervention Courts.”

• If statutory eligible, a defendant shall be screened upon request.

• All “Intervention” Courts must report the total number of screened applicants by:

• Race

• Gender

• Indigence

• Offense charged and

• Reason for non-acceptance, if applicable.


HB 1352 Update

Medication Assisted Treatment (“MAT”)

• For a DUI offense, if the defendant has two or more DUI convictions and is seeking

entry to the “intervention” court, he shall be screened by a physician to determine if

MAT is appropriate.

• All “intervention” courts shall make available the option for participants to use court-

approved MAT.


HB 1352 Update

Waiver of Fees

• The judge may waive all fees if an “intervention” court applicant is determined to be

indigent.

• This fee waiver may also occur at the completion of the “intervention” court, to allow

an indigent participant to obtain an expungement.


Resources

www.nadcp.org

www.ndci.org

www.dwicourts.org

www.justiceforvets.org

https://www.ndci.org/resource/law/

http://www.nadcp.org/



http://www.justiceforvets.org/

https://www.ndci.org/resource/law/

Pam Holmes

Director of Problem-Solving Courts


601-576-4631

April 25, 2019

Steve Edwards, J.D.



601-576-4626

pam holmes steve edwards, j.d. drug court operations analyst … spring pd conference/defense... ·...

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